Labour Court of Namibia, Main Division, Windhoek

NOT REPORTABLE

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT Case No: LC 5/2009

In the matter between:

NAMIBIA BEVERAGES APPLICANT and

BEN HIPIKURUKA 1ST RESPONDENT KAHIMISE MUJORO 2ND RESPONDENT JEKONIA SIMON 3RD RESPONDENT VICTOR NJEMBO 4TH RESPONDENT

LAZARUS NAMHINDO 5TH RESPONDENT

THOMAS KAHANDA 6TH RESPONDENT

HELMUD NDJEMBO 7TH RESPONDENT

BEN KAVANDURA 8TH RESPONDENT

ANDREAS SAKARIA 9TH RESPONDENT

MATHEUS AMAKALI 10TH RESPONDENT

KADILA ELIA 11TH RESPONDENT 2

CLEARANCE KAUAUTA 12TH RESPONDENT

MERVIN NGUAIKO 13TH RESPONDENT

UAUNDJUA KAHIMA 14TH RESPONDENT

EDWIN HAMBIRA 15TH RESPONDENT

MARTIN VILHO 16TH RESPONDENT

GABRIEL NDIMUFITU 17TH RESPONDENT

SEBASTIAAN EICHAB 18TH RESPONDENT

JEFTA EICHAB 19TH RESPONDENT

THOMAS KALUWA 20TH RESPONDENT

MATEHUS KAPOLO 21ST RESPONDENT

AMEN SHILUWA 22ND RESPONDENT

GERSON LOEJA 23RD RESPONDENT

LILIE AMWAALA 24TH RESPONDENT

ELDIES HOAEB 25TH RESPONDENT

CLEMENTZ GEORGE 26TH RESPONDENT

DAVID ANGOMBE 27TH RESPONDENT

ISSASKAR KANDJOZE 28TH RESPONDENT

IMMANUEL ICKWA 29TH RESPONDENT

KYLLIKKI T.N.N. SIHLAHLA (ARBITRATOR) 30TH RESPONDENT

Neutral citation: Namibia Beverages v Hipikuruka (LC 5-2009) [2014] NALCMD 20 (9 May 2014)

Coram: VAN NIEKERK J Heard: 6 March 2009 Delivered: 9 May 2014 3

Flynote: Labour law – Application for suspension of arbitrator’s award in terms of section 89 of Labour Act, 11 of 2007, pending outcome of appeal – Respondent employees withdrawing opposition after judgment reserved – Case made out – Application granted. .

______

ORDER ______

1. Condonation is granted for the applicant’s failure lodge its notice of appeal in accordance with Form 11 of the Labour Court rules in time.

2. The main application is granted.

3. There shall be no order as to costs.

JUDGMENT

VAN NIEKERK J:

[1] The applicant employed the first to 29th respondents (‘the respondents’) as temporary merchandisers on the basis of written temporary employment contracts concluded for a fixed term. In respect of the 1st to the 22nd respondents and of the 24th respondent the contracts were to expire on 15 January 2009 and in respect of the 23rd respondent and the 25th to the 29th respondents the contracts were to expire on 15 July 2009. 4

[2] A dispute developed between the applicant and the respondents regarding their conditions of employment, which eventually led to their dismissal on 5 December 2008. Their internal appeals failed on 8 December 2008.

[3] The respondents then filed a complaint in terms of section 84 of the Labour Act, 2007 (Act 11 of 2007), which was referred to arbitration by the 30th respondent (‘the arbitrator’). On 23 February 2009 the arbitrator ruled against the applicant and made an award in the following terms:

‘7.1 the applicants’ dismissals were substantively and procedurally unfair;

7.2 The applicants should be reinstated on terms and conditions that existed prior to their dismissals i.e. the 05th of December 2008 without forfeiture of their salaries and services;

7.3 the applicants should report on duty on the 02nd of March 2009; and

7.4 the respondent must pay their full remuneration as from the date of dismissals.’

[4] Thereafter on 27 February 2009 the applicant filed a notice of appeal against the award and launched this application in which the applicant prays on an urgent basis for the execution of the award to be suspended in terms of section 89 of the Labour Act pending the outcome of the appeal.

[5] The application was opposed by the respondents and argument was heard. Some time after judgment was reserved the respondents filed a notice withdrawing their notice of opposition on the merits, but reserved opposition against the award of costs in the application. The applicant, however, did not pray for costs to be awarded against the respondents, nor was any argument directed to this effect.

[6] All that remains is to consider whether the applicant has made out a case on the papers. In this regard I agree that the applicant was justified in launching the application in the time frame that the matter was prepared and set down for hearing.

[7] The next issue I should consider is the application by the applicant for condonation for its failure to file the notice of appeal against the arbitrator’s award in a form corresponding with Form 11 of the rules of the Labour Court. The applicant first filed a notice of appeal merely setting out the grounds of appeal. It did not follow 5 the form set out in Form 11 which, inter alia, also requires that the exact part of the award appealed against be set out; that the order asked for on appeal be set out; for an affidavit of fact be filed; and certain other notifications to the respondents. After this failure had been pointed out by the respondents, the applicant filed a notice of appeal on the same grounds as before and complying with Form 11. The only further error is that this notice of appeal refers to an affidavit by one Jakobus Johannes van Zyl, while the affidavit is in fact made by one Petrus Maritz de Bruyn.

[8] The applicant prays for condonation in its replying affidavit, stating that it was at the institution of the main application under severe time constraints and that no prejudice was caused by the fact that a notice of appeal in the wrong form was filed. During argument counsel for the applicant also mentioned that the new Labour Court rules had only shortly before come into operation on 15 January 2009 and that the fact that Form 11 is in a new and different form to what was formerly required in a notice of appeal, had escaped counsel’s notice when the appeal was noted.

[9] I am satisfied with the explanation provided and condonation should be granted.

[10] As far as the merits of the application are concerned, I am required by the provisions of section 89(8) of the Labour Act to consider any irreparable harm that would result to the employees and employer respectively if the award, or any part of it, were suspended, or were not suspended. If the balance of irreparable harm favours neither the employer nor employees conclusively, I must determine the matter in favour of the employees.

[11] As was pointed out on behalf of the applicant, the award makes, with respect, no sense as far as the 1st to 22 respondents and the 24th respondent are concerned. Their fixed term contracts already expired on 15 January 2009 before the award was made. There can be no basis on which they could have been ordered report for duty on 2 March 2009 for continued employment by the applicant. When were their contracts then to expire? As was submitted on behalf of the applicant, they would then be in a better position than if they had never been dismissed. The applicant had already filled the vacancies with other employees on fixed term contracts. What was to be done with them? In my view it is obvious that, should the award not be stayed in respect of these respondents, the applicant would suffer irreparable harm in that it would have to compensate the new employees as well. 6

[12] Apart from this, the applicant states in its founding affidavit that it must, in order to comply with the award, make payment to the respondents in the amount of nearly N$160 000 without having had the advantage of the respondents’ employment. Should the applicant be successful in the appeal, it is unlikely that it would be able to recoup this amount as the respondents are seasonal, temporary employees. On this aspect it seems to me that the balance of irreparable harm also favours the applicant.

[13] In light of this conclusion (apart from other considerations, e.g. the issue of non- joinder of relevant parties), it is not necessary to deal with the applicant’s argument that section 89(6) is discriminatory and in conflict with Article 10 of the Constitution.

[14] As far as the merits of the application are further concerned, I am satisfied that a case has been made out for the relief sought.

[15] The result is therefore as follows:

1. Condonation is granted for the applicant’s failure lodge its notice of appeal in accordance with Form 11 of the Labour Court rules in time.

2. The main application is granted.

3. There shall be no order as to costs.

___ (signed on original)______

K van Niekerk

Judge 7

APPEARANCE:

For the applicant: Adv. J.A.N. Strydom Instr. by Theunissen, Louw & Partners

For the 1st – 29th Respondents: Mr S Namandje of Sisa Namandje & Co. Inc.